Development in Medical Marijuana Laws

Though not technically a subject that fits with the theme of this blog, the fact that I have advised California clients on how to incorporate and operate as a both a grower and seller of medical marijuana prompts me to provide this update.

On October 19, 2009, the US Department of Justice issued an official memorandum stating, in pertinent part, that it is the policy position of the department to discourage prosecution of persons who sell and/or buy marijuana in strict compliance with applicable state laws. (See http://blogs.usdoj.gov/blog/archives/192.)

First and foremost, the impact of this memorandum should not be overstated. The policy statement does immunize any conduct.  The production, sale and purchase of marijuana, regardless of the purpose, and regardless of state laws, remains a violation of federal law and can be prosecuted as such.  Rather, the Justice Department is suggesting federal law enforcement and federal prosecutors look the other way when marijuana is handled in compliance with state laws. The following excerpt from the memorandum makes that clear:

"This guidance regarding resource allocation does not “legalize” marijuana or provide a legal defense to a violation of federal law, nor is it intended to create any privileges, benefits, or rights, substantive or procedural, enforceable by any individual, party or witness in any administrative, civil, or criminal matter. Nor does clear and unambiguous compliance with state law or the absence of one or all of the above factors create a legal defense to a violation of the Controlled Substances Act. Rather, this memorandum is intended solely as a guide to the exercise of investigative and prosecutorial discretion."

Nonetheless, the policy statement is a step in the right direction.  It is critical that residents of California dispensing marijuana for medical purposes carefully comply with state law as law enforcement will now likely feel additional pressure to separate the legitimate medical marijuana dispensaries from the illegitimate.  The following opinion issued by the Department of Justice for the State of California is an excellent resource:

http://www.ag.ca.gov/cms_attachments/press/pdfs/n1601_medicalmarijuanaguidelines.pdf

A Risk: Providing Limited Scope Representation In Federal Courts

The propriety of providing limited scope representation to persons proceeding pro se in federal courts remains unclear.   Generally speaking, federal courts discourage – and in some jurisdictions come close to outright forbidding - ghost writing as an unethical practice and as a material misrepresentation in violation of Fed. R. Civ. P. 11.  However, the choice for litigants is not therefore necessarily reduced to acquiring full representation or doing without an attorney.  The crux of the issue is the extent to which an attorney must disclose the assistance rendered, and whether such disclosure pushes the attorney-client relationship from limited representation to something else. See Laremont-Lopez v. Southeastern Tidewater Opportunity Ctr., 968 F.Supp. 1075 (E.D. Va. 1997) (holding limited scope representation assistance should be disclosed.)  

From a policy perspective, federal judges have voiced the concern that when an unknown lawyer controls the litigation process on behalf of a pro se client, or ghostwrites documents to be filed with the court, the court will provide more leniency than is due to the ostensibly unassisted pro se litigant. Federal courts are also concerned that a lawyer will circumvent his or her obligations to ensure pleadings are proper if working in “secret,” e.g. fail to perform the appropriate due diligence regarding the contents of documents filed. See Johnson v. Board of County Comm'rs, 868 F.Supp. 1226 (D. Colo. 1994) (reasoning ghostwriting gives litigants an unfair advantage in that pro se pleadings are construed liberally and noting ghostwriting enables the evasion of obligations imposed on attorneys.)   

Thus, if a California-licensed attorney appears to be “guiding the course of the litigation with an unseen hand” while operating "behind the scenes,” (Ricotta v. State of California, 4 F.Supp.2d 961, 986 (S.D. Cal. 1998) (set forth review of case law)) or prepares a brief “in any substantial part,” case law urges the attorney advise the court of his or her role in the matter. See Ellis v. State of Maine, 448 F.2d 1325, 1328 (1st Cir. 1971.)

What form of disclosure is sufficient?  Does the attorney need to disclose his or her name and address on a separate filing with the court and sign court documents, or does a mere generic statement in a motion or other document informing the court of a limited representation arrangement suffice?  Although there is no clear direction on this matter, certainly apprising the court in general terms that a pro se litigant is receiving legal counsel is required.  See, e.g., Duran v. Carris, 238 F.3d 1268 (10th Cir. 2001) (an attorney must refuse to provide ghostwriting assistance unless purported pro se client specifically commits to disclose attorney's assistance to the court upon filing.)  In view of the public policy objectives, simply communicating to the court that an attorney is assisting the pro se litigant puts the court on notice.  The identity of the attorney can thereon be quickly made public if required.

Whereas the weight of federal case law - although not categorically prohibitive of limited scope representation - still frowns on the practice of limited scope representation in contrast to California law, federal courts located in California may be changing with the times.  For instance, the Northern District Court recently opened a "Legal Help Center Open to Assist Pro Se Litigants" and at which attorneys will "provide information and limited-scope legal assistance to pro se litigants who have civil matters before the San Francisco or Oakland divisions of the U.S. District Court for the Northern District of California." A good sign.   

I am in the process of providing limited scope representation in a complicated federal case and opposing counsel is resisting my involvement.  Will keep you posted.

A Resource for California Pro Per Litigants

Limited scope representation is a relationship between an attorney and a person seeking legal services in which it is agreed that the scope of the legal services will be limited to specific task  that the person asks the attorney to perform. This is also called “unbundling” and “discrete task representation.”

Limited scope representation helps self-represented litigants:

· Prepare their documents legibly, completely, and accurately;

· Prepare their cases based on a better understanding of the law and court procedures than they would if left on their own;

 · Obtain representation for portions of their cases, such as court hearings, even if they cannot afford full representation; and

 · Obtain assistance in preparing, understanding, and enforcing court orders.

 This assistance can reduce the number of errors in documents; limit the time wasted by the court, litigants, and opposing attorneys because of the procedural difficulties and mistakes of self-represented litigants; and decrease docket congestion and demands on court personnel. In focus groups on this topic, judges indicated a strong interest in having self-represented litigants

obtain as much information and assistance from attorneys as possible. They pointed to the California courts’ positive experience with self-help programs such as the family law facilitator program, which educates litigants and assists them with paperwork. These programs, however, cannot meet the needs of all self-represented litigants and, because of existing regulations, must limit the services they can offer.

 See Report on Limited Scope Legal Assistance With Initial Recommendations, Limited Representation Committee of the California Commission on Access to Justice, October 2001

http://www.calbar.ca.gov/calbar/pdfs/reports/2001_Unbundling-Report.pdf

 Regards, 

caselfrepresentation.com